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tv   Key Capitol Hill Hearings  CSPAN  November 28, 2016 4:18pm-6:19pm EST

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here. >> hello. >> hello. i'm kathleen. i work at a local nonprofit here in d.c. we heard you speak about gender-based bias in your career and the hurt you felt after that. for women who may experience similar bias, what advice oren couragement would you give to keep it from impacting your commitment to the living out your passion? >> you know, i don't know if there's an answer -- that there's a magic pill answer that an approach to it that is right for every situation. because every situation is so generous, okay. there are moments where private conversation between people is the way to resolve an issue of bias. so, for example, with the marshal i was talk building, i
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sat back and thought, what do i do? i can do what my instinct was, why are you calling me honey? that was my instinct. but i sat back and thought, i think he will see me as a friendly judge. i try to be nice to everybody. but i think some people take that to a level of familiarity that they shouldn't. so i could have reported him to a supervisor. i could have said something nasty to him. but i thought about it for a minute. and i said, you know, i know that we're friends and i really like you. you're a great guy. but i think if somebody heard you call me honey they would think something wrong was going on. and i don't think that's good for you or me. so how about we is stick to judge? and he didn't make the same
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mistake. all right. a second time i was a student at yale at a mock trial and there was mock jurors from the community. and there was a gentleman in the first row who clearly didn't like me. i don't know if you've ever had that experience where you have seen someone who every time you say it's like the pursed lip out, that sort of disgust. so at the end of the mock trial i went up to him and i said, i could tell you didn't like me. what was i doing wrong? and he was saying, you weren't doing anything wrong. you can't do anything about why i didn't like you. don't worry about it. and i looked at him and said, i'm a student. part of this exercise is to learn from my mistakes, so please tell me what i did wrong.
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so after back and forth along that vane he turned to me and said, look, i don't like, i actually hate, brassy jewish women from new york. and i think i did this. and i actually thought for a second. because the first thing that came to my head was, but i'm not jewish. that's what came to my head. and then i sat back within myself and i looked at him and i said, you're right. i can't do anything about that. and i walked away. behind me was one of my dearest friends from law school. he said why didn't you just punch him out? i wanted to punch him out for you. and i looked at him and said what is the purpose of getting
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into a fight with something like that? i was never going to change his mind. someone who was that bigoted and that limited in their the view of others, you're not going to talk reason to that person. and so all i was going to do is get into a scene with no purpose at the end. and so i didn't. but i didn't take what he said to me to define me. and it certainly didn't change my style. i'm still a brashy jewish woman. and i wear it with pride. okay. but a third situation had to do with being asked a series of questions during an interview when i was in law school. and i'm sorry, bill, i'll just keep going. >> no problem.
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no doubt who is in charge. >> there an interviewer, as i sat down at a dinner table, there's a group of students were being hosted by the firm as prospective applicants to the firm. and the classmate who had spent the summer at this firm went around the table introducing us. and in sort of neutral terms, sonia is from a puerto rican family from the bronx in new york. and she's now at yale. and as long as all the introductions around the table were over with, this man said did you get into yale only because you're puerto rican? and the conversation went on from there. it was insulting. especially since he never looked
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at my resume. and as i told him the next day when i confronted him in private, i had, no, i actually don't think so. i think it's more the way i graduated the way i did from princeton. and if you looked at my resume i doubt you would have asked me that question. but in that situation i thought about what my response should be, and i went privately to tell him how insulting what he had done was. and moreover insulting, because it wasn't the time and place to have a question about affirmative action. i was an applicant to his firm and he should treat me with respect, not to make assumptions about me and to interview me with that level of respect. but i went further and i filed a complaint with the school's career division. and i learned later that many
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students like me had been subjected to similar questioning during their interview. i chose that moment to do a public act because i understood it wasn't just for me. it was for the good of others who might not be in the same position i was to deal with that kind of situation. so how you deal with any kind of on bias that's directed at you, there's all sorts of weapons at your disposal. in terms of my personality, i'm more likely to engage people around me. i'm much more likely to do what i did with him first, which is to go and talk to him about it and express my outrage. that's who i am. that's the nature of my personality generally. and sometimes it makes a difference. sometimes you get a genuine
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apology and a statement, this was not intended. sometimes you learn things about your performance that you don't like hearing. but it's important for you to take in and address because not all things that we recognize as bias are actually bias. sometimes we either misunderstood a situation or not given credit to things other than the bias. so i guess my answer to your question is, there is no magic pill in dealing with it. but doing something, but doing something that really gives to the situation and acknowledges what may have been the motivation for the other person. and takes that into account in the approach. i think it makes the conversation more meaningful.
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it helps the other person understand what they've done and how you felt. but giving them an out as well when what you're asking them to do is to change their behavior toward you. good luck. [ applause ]. >> we'll get your picture. don't forget on stphrfp. >> justice, we are doubly blessed to spend a great hour with you this evening. thank you so much. >> thank you. [ applause ]. we have a special web page at c-span.org to help you follow the supreme court. go to c-span.org and select supreme court near the right-hand top of the page.
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once on our supreme court page, you'll see four of the most recent oral arguments heard this term and see is all the oral arguments covered by c-span. in addition, you can find recent appearances by many of the supreme court justices or watch justice thes in their own words, including one-on-one interviews in the past few months with justices kagan, thomas, and beginsberg. there is a calendar for this term, and links to quickly see all their appearances on c-span and many other videos available on demand. follow the supreme court at c-span.org. recently the supreme court heard oral argument in two consolidated cases brought by miami against the bank of america. the court will decide if they can sue under the fair housing
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act. >> the argument first this morning in case 151111, bank of america corporation versus the city of miami in the consolidated case. mr. katyal? >> the question is whether cities can sue under the fair housing act. our answer to the that question is, yes, sometimes. and i mean three things by that. first, the answer can't be yes always because that would eviscerate two key doctrines proximate cause. and third, this lawsuit fails both zone of interest and proximate cause because the
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injury it seeks to remedy is related and because it is is several steps removed from any alleged acts of petitioners. if i could start with zone of interest. this court -- >> before you do that, mr. katyal, you have said, yes, cities can sue under the fha but not in this matter in this scenario. can you tell us what -- under what circumstances could a city sue. >> absolutely, justice ginsburg. it identifies two places where cities can sue. one is a havens like situation in which a city like the ngo in havens is combatting secrete instances of discrimination by a defendant and outlaying things so testers or something. took the allegations in this complaint and made them out to be the banks were engaged in
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some sort of discriminatory loans and the city had to the basically expend funds to test that out, to enforce housing statutes, that looks very much like the one to run relationships both for zone of interest and proximate cause. >> the test theers were not city employees. in havens it was their job to do this. so why are you attributing the testers work to the city directly? >> because, justice sotomayor, it is appendix page 2 in havens, the can complaint asks for the city's expenditures to combat -- it identifies specific things, including testers and other -- >> why is this different than the other allegations in havens that had to do with lost revenues, with lost tax base, which the court cited as well.
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here there are direct expenditures in terms of increased monitoring of the area by police and other services. aren't those city expenditures? >> so those -- that's not havens, justice the sotomayor. i think that's gladstone. but our position is that to the extent the city can plead a complaint, the second bucket in which the city can assert injury is just like gladstone in which there is a segregation claim that is being advanced. there was that racial steerers that realtors were steering african-americans out of a village. for zone of interest purposes, gladstone doesn't talk about proximate cause at all. for zone of interest purposes, there is absolutely nothing wrong with that. that is the -- >> i'm sorry. you're thinking that if banks are forcing people out of a neighborhood, that that is not discrimination? >> oh, no.
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i'm saying -- your honor, i'm saying to the extent of that, that absolutely is. that's what gladstone recognizes. here's what it doesn't recognize. something like this complaint, not that the city is pleading anti-discrimination interest, rather they are borrowing someone else's interests, namely the discriminatory loans that happen. our position is the direct victims can obviously sue for that. so too can the justice department and hud because that's what congress empowered them to do to have a version of the patriotized standings. is and there are tax revenues and things like that. that looks like the shareholder in thompson that so concerned this court. the shareholder there was not identifying an anti-discrimination injury. they were identifying an economic injury and cutting and pasting -- >> but gladstone, which is the case of a village, they were
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suing for diminished property values which resulted in loss of revenue. that was -- so to that extent these seem the same to me. the bottom line said tax base had been depleted. >> so justice ginsburg, that is not totally correct. in glad stone, the injury itself to the village was an anti-discrimination injury. that is the first part of gladstone. that is page 110 of the opinion. here they haven't identified an anti-discrimination harm to the city of miami. they have identified an economic harm. so that's why this case is not within the zone of interest but the one there is. you can think of it this way. the two lone stars on this case. one is the thompson shareholder. the shareholder who has economic
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injury. no doubt they are hurt by an underlying act at the front end. the ceo who is fired for race discrimination or something like that. but they said, no, that opens the door to way too many lawsuits. >> that was a hypothetical that was brought up on its own. it uphill the standing. >> again, our position is fully consistent with thompson. that is the language in the opinion itself. it was something justice kennedy raised at oral arguments and picked up by justice briar and thompson. the language does talk about thompson. the nap mouse decision on lexmark says much the same about landlords and utility companies. if you accept their interpretation, you are opening the door not just to the city but to anyone else who can borrow someone else's anti-discrimination interest, be
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cut and paste it. >> are you thinking the city might be in the same position as home was in -- was it the havens case? >> so there's two different buckets. the first bucket, my first answer to justice ginsburg, yes. the city is like home. the ngo. they are identifying specific concrete interests to outlay to profile the racial misconduct. the second category as well. >> i don't want to prevent you from finishing your answer. are you saying the city is limited as to the damages? that you can recover. >> on that theory, that bucket, they would be limited as to the
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damages. >> justice the kennedy the, i see you are troubled by that. the second thing is the glad stone segregation category. and in that circumstance, the city can recover for -- the the proximate cause we'll put to the side for a minute. but they can recover for the harms by making an integrated neighborhood become segregated. that is they can recover for as well as injunctive damages. >> would that be be added police course? >> no. that would result in proximate cause problems down the road. >> what could the city recover for the general damages of having a more segregated community as a result of the defendant's actions. >> well, i think anything they can directly outlay, and that may be hard to identify. this is done more on the injunctive side.
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they brought these to hud. >> your concession runs into the same problem as the main argument. if the city can recover for having a more segregated environment, that seemed to be measured by all sorts of things, including tourists won't want to visit it as much. how would you measure the damages if the harm is simply having a more segregated city? >> i'm making what this court's precedence requires starting with the 1990 decision in luhan. here the city has to identify anti-discrimination interest that they have suffered. they can't cut and paste and borrow someone else's. so to the extent we're talk building this diminution in tax bases. so the way to reconcile -- >> that suggests when congress
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based the fha, it was looking only at individual acts of discrimination to particular persons. but the fha is a very peculiar and distinctive kind of anti-discrimination statute which really is folk under the circumstancesing on community hammerr harms. it is not just individuals harmed. it is individuals who are harmed. that's the basic idea why congress passed it. here the cities are standing up and saying every time you do this red-lining is and reverse red-lining, essentially a community is becoming blighted. >> we recognize that is something at issue and one of the goals of the fair housing act. i think the way congress dealt with that is not saying they
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have to have a patronized setting. as well as in 3610-f congress empowered state and local enforcement to the deal with those types of community-centered problems you're talking about. here they're not using any of that. they're coming in and saying we are, quote, a person a grieved. a person a grieved is by private persons. >> well, but they are a person a grieved under the -- given congress's purposes in the act. because they're saying as you did this red lining, as did you this reverse red lining, our community, what makes us a city, is becoming more and more blighted. that is what we are trying to recover for. the costs of responding to that, the costs of nonhaving revenues in order to carry out our services for that community and for others. >> so justice kagan --
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>> this is their own interest in maintaining their communities free of the kind of racial discrimination that they say causes neighborhood blight. >> if the complaint were written to say it was segregation causing blight, we would have no problem with it. the city would fall within that zone of interest. that's glad stone. that's what the commission report says. blight is caused not just on its own but a result of segregation. references to blight in the commission report follow from segregation. >> how far out would damages extend in the hypothesis you just gave? >> so for zone of and, you're able to get -- i don't think it matters. that is to the extent that the city -- excuse me, the complaint by the city pleads a segregation
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harm. they're in the point of interest. >> i guess i don't understand why this isn't a segregation harm. here the city is saying you've done this red lining, reverse red lining. it's not just that it causes various foreclosures all of the city. it's causing foreclosures in particular concentrated areas. and it's doing that because of on racial segregation. at the same time, it's preventing that racial segregation from ever being lifted because the communities are becoming more and more polited and less and less capable of becoming integrated communities. so everything about this complaint is about racial segregation it is seems to me. >> justice kagan, look back what you just said and read it against their complaint. none of that is in the complaint. >> so you think everything that was just said, that they could maintain the suit. >> they could maintain a suit for segregation and the measure of damages wouldn't be the
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measure of damages they're seeking which is recovery for the 2008 foreclosure crisis in miami to the tune the of billions of dollars nationwide. it would be, again, at most, and i want to get to proximate cause, but at most the delta between a segregated community that now exists as a result of the defendant the's particular conduct and the integrated community that would have existed otherwise. >> how do you measure that? >> i'm not sure. that's why i think it may fail on proximate cause. but at least we have been talking so far about zone of interest. that's all gladstone dealt with, zone of interest. with respect to zone of interest, i think that complaint, the one that justice kagan, you read, would satisfy zone of interest. it would allow a city to come in and get injunctive relief. the question is, would they be able to recover damages?
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it is is certainly true, justice ginsburg, they have the line at the end of page 110 that takes about diminution and tax dues. i don't think the court has ever decided the question of whether or not proximate cause principles allow a segregation lawsuit so far. >> gladstone would be, i take it from everything you said, that gladstone would flunk at the proximate cause stage? >> so i do think that's right. that is there would be so many steps involved. you could just take a look at this complaint. there is a brief page 30, you see all the steps that are required before the city is injured. you have to have discriminatory loans. they have to lead to defaults. the defoughts have to the lead to foreclosures. they increase in vacancies. they lead to reduction in property values.
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>> i usually think of proximate cause, correct me if i'm wrong, as a question of liability not damages. no liability. >> correct. >> but you say proximate cause bears on on both liability and damages? >> i do. i think this court has kind of thought bit that way. you can look at lexmark. i think what this court has said, you look to the underlying damages that are being sought to understand is the complaint within the kind of standard proximate cause principles. and here, if you accept their theory, that chain, you'll be doing something i don't know this court has ever done before, which is to allow such a lane chain of causation to the tune of, again, billions of dollars to recover -- >> i'm sorry. >> could i ask a separate question. we have been talking a lot about zone of interest and whether it has supplies at all. because you have these three
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cases prior to this 1988 re-enactment of the old 1968 language. and in each of these three cases, the court very specifically says that this language stretches to the limits of article 3. so congress is amending this statute in 1988 against that back drop. why shouldn't we understand that to mean that the language means it stretches to the limit office article 3. >> for three reasons, justice the kagan. the first is that in most doctrine applies to holdings of the court. i know you weren't on the court for thompson, but the rest of us were here. in thompson, the court unanimously -- >> i'm disabled from having thoughts on this? >> no, absolutely not. i was actually anticipating the reverse. and so i think the court went through this. they heard the solicitor general's argument at the time,
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which was this was all to the limits and binding holdings and what this court said. >> i guess i don't understand. we can argue about whether they were holdings, there are arguments on both sides of that. here i am in congress. suppose you were an adviser to the congress and the congressman said, okay, i don't like this idea of going to the limits of article 3. i think we should limit it. you say, no worries, just use the same language. and he says, use the same language? that has been consistent understood to go to the limitings of article 3. you say, don't worry, it's edictthe a. wouldn't you be fired? >> your honor, i think i would be fired if i did the what you said, what is not follow what this court has required, express negation of the zone of interest test. not borrowing from some implicit doctri doctrine.
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the doctrine is only a guide to what congress implicitly thought. perhaps going before the aeg case. you need an suppressed negation in order to abrogate the zone of interest. >> the citizen of interest test, at least as it was announced, was understood to expand standing over what it had been before. so the zone of interest was not in standing, it was tating the ability to bring lawsuits. >> certainly. but by the time of block, which was about limiting standing, that was before 1988. so i think you have that problem you would be fired, justice kagan, for another reason in your hypothetical, the congressional report that you wrote, the house report as a staffer, says there's only two
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things that you are trying to cot phi. one is that testers have havens. >> i don't view the house report that way. they refer to a couple particular aspects of that. but it makes clear that congress knew about those cases and those cases are of course the cases which said that standings stretches to the limits of article 3. and if you really look at the legislative history of this act, it's pretty clear that congress is act anything 1988, it took off the shelf a bill that was discussed in 1980. and in that bill, there was a lot of discussion about whether standings should go to the limits of article 3. and congress was thinking of changing that language and drew days, the hud secretary, they
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both come in and they tell congress, if you change that language, it's a problem because then you're cutting back on standing. and congress decided not to change that language because it wanted, as drew days said said, to go to the limits of article 3. >> i'll answer that in a minute. so justice kagan, even if all of that is true, i think this court has insisted on an expression negation. >> this is not express limitation that means we're not -- we're doing away or we're keeping this own of interest. lexmark itself establishes that rule. there was no explicit statement. what the court did was look at the statute, the endangered species statute, and any person meant any person, and decided it did away with the zone of interest. here, we have a congress in
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1988, taking the word aggrieved, which was in the in title 7 and many other statutes, but undefined. what it did was take the definition, looked at by prior regulations, examined by this court, in its three case establishing article 3 standing, and put in a definition of aggrieved, that's very different from the normal definition. >> justice -- >> why is that -- >> it is not very different. it is a plain jane definition of person aggrieved. it didn't look like what you're talking about the endangered species act, which allows any person to sue. their interpretation, if accepted, you're going to be doing that there is no all comers damages statute that allows anyone to sue the way their interpretation. our main point is this. this court in lexmark said there
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is a general rule, an independent argument, a general rule that says that liability is cut off after the first step. if you adopt this theory of the complaint, you're accepting sixth step liability in a way this court has never done before. at most, this court in lexmark unanimously said you can go beyond the first step for a one-to-one relationship. but here, this complaint is seeking damages for the foreclosure crisis of 2008, something that's way, way beyond anything this court has insisted on. >> when you say that, when you said to me that the complaint that i wrote would have been covered by the act, do you think it also would fall within proximate cause principles? >> i think that the complaint would have to satisfy a directness requirement. so to the extent the city could identify segregation interest, seg ration harm directly, in a way university could when they
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become, lose diversity or something like that, to extent there is someoone-to-one relationship, congress could write a statute that enables and abrogate, plain jane damages, and what they're doing here, the fair housing act has been around before i was born and only until a couple of years have we ever seen a complaint that looks anything like this. here, they're seeking to recover for the foreclosure crisis of 2008. that can't possibly satisfy proximate cause principles. starting in 1918, going all the way to the holmes opinion of this court just more recently. we've got holmes and homes. >> there is one understanding, i guess when i started reading the briefs, i was confused. there is one understanding of proximate cause, which is
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usually foreseeability and only foreseeability. there are definitely places where we've said there is this additional -- only in discreet areas. i guess i sort of come back to this notion that i think what our president suggests it is a little bit statute by statute as to whether proximate cause a foreseeability inquiry and only that, or whether it has additional components. >> i'll answer that, and if i could reserve the balance of my time. i think this court in paraline, there must be a direct relationship between the injuries asserted and the injurious conduct. >> what do we do with all of the statements in havens? i'm quoting, there is little significance in the difference between direct/indirect injuries for purposes of filing suit under the fha?
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trafaconte, while they were hurt the most, the proponents emphasize that those not the direct of objects of discrimination had an interest in ensuring fair housing. >> justice sotomayor, i agree on all of those. >> repeatedly said -- >> absolutely. >> direct an indirect, it has no meaning in this statute. but foreseeability -- >> never anything about proximate cause. that goes to standing. that's a completely different -- if i may reserve. >> thank you, counsel. >> mr. peck. >> may it please the court, the city of miami brought this -- these cases seeking in juntiv relief and monitor damages because the bank's practice of providing minority borrowers with more expensive and riskier loans than they qualified for or that non-minority borrowers
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received. actually frustrated and counteracted the city's efforts on fair housing. and intended to cause the city to lose the benefits of social, professional and business opportunities that come with an integrated community, free from housing discrimination. now, you heard my friend describe these as two buckets, that if the complaint makes that out clearly, then we do have standing that we fit within the zone of interest. we thought that the original complaint that we filed made this apparent, the 11th circuit agreed with us. but when the district court dismissed us with prejudice on the original complaint, we made a motion for reconsideration to try to make more explicit what we thought was implicit in this complaint. as a result, the court did deny us the opportunity to do that. if you look at the amended complaint, it does talk about the fact that the city operates a department of community and
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economic development, which takes complaints about fair housing, tries to mediate it, counsels educate citizens about it, and is in charge of all these kinds of efforts we thought were part of our original complaint. at the same time, we recognize that the injury to the city is one that comes from the failure to follow the nondiscrimination principles embodied in the fair housing act. those two buckets do exact in this complaint and if they don't, then they do exist if we had the opportunity to amend the complaint and make it even more explicit. and -- >> i'm looking at the joint appendix, page 186, your opening paragraph, where you say conduct has harmed the residents of miami and impaired the city's strong long-standing and active commitment to open integrated residential housing patterns. it is intended benefits of
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creating a stable community. then you go on to the specific damages, the loss of tax revenues and increased expenses. it is those types of allegations in your amended complaint that you're pointing to? >> i point to those, i would point to 232 and 233, the operation of our department of community and economic development. and so as a result -- >> this pretty much tracks havens and gladstone? >> it does, indeed, justice sotomay sotomayor. as a result, we think that regardless of whether you take the article 3 approach to standing in this case, or take a more narrow formulation that depends on the fact that it is tied to violations of the act, the city of miami has standing. and the -- i don't understand either bank in their briefs to disagree with us on that, as
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long as we make those pleadings. so it seems odd that we would be prevented from making those pleadings as explicit as possible. >> do you think you were a direct victim of discrimination because it seems to me that the damages that you seek are not going to be paid to those who were the direct victims of the discrimination? >> we are seeking -- we are a direct victim. this court has repeatedly and inn all three cases dealing with fair housing act realizes it is direct and indirect damages at issue. plaintiffs who are indirectly harmed are also harmed. we're suing for our own injuries. >> your injuries are derivative of the injury of the homeowner whose had the subprime mortgages and suffered foreclosure and so north. you don't start with you.
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i understand your argument down the line, but i don't see how you can say your loss of property taxes is a direct injury. >> what we're saying is the injury here is the injury to our interest in an integrated community that has hose business and social tunes that this court found cognizable. >> presum plably you suffer sal taxes, less attractive to tourists. why -- would you be able to recover loss of tourist revenues? >> we don't think we can. >> why is that? you can certainly see the logic. it isn't as attractive a city. >> cities are in a unique position. this is near neighborhoods, their residents. there are zoning laws. the issues of property values and even property taxes are baked into the home loans that are made by the banks. they are part and parcel of the
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issue here. and the fact is that the city is having affirmative obligation that require them to look out for fair housing. miami, among other cities, gets grants from the department of housing and urban development -- >> you do get property taxes, so what is it that cuts off the chain? >> well, we believe that because it has to be tied specifically to the property, so we could get property taxes -- >> how do -- how are cost of increase services, whether it is police or -- >> air not claimiyou're not cla increase police, but we have to find those structures because they've been abandoned after foreclosure, remediating neighborhoods. this is the other end of having fought against afflictions to
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fair housing. this is the other end when you try to remediate the neighborhoods and make it whole again. those are efforts we seek damages for. those flow directly from it. let's note that in gladstone, this court recognized that a city, a municipality is directly injured in its property values, and the taxes that are foregone that go to services. that's where we see the direct connection. >> gladstone never got to proximate cause, it just decided whether there was standing -- >> justice ginsburg, the court did not describe proximate cause here, but it is hard to read that as anything referring to anything but proximate cause. it is a direct injury that flows from the discriminatory conduct. now, one thing that my friend also said was that we're seeking billions. in our complaint, we mentioned
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the fact that we have lost millions, not hundreds of millions, not billions in property taxes. we note that before the city of miami brought its case, the city of baltimore brought a case and they ended up settling with identical allegations for less than $10 million each. we're not talking about huge sums of money -- >> presume plea what factored in was one of the questions presented today. in other words, if you would have prevailed, they wouldn't have to give up a percentage that they may not be stating a claim. >> it is possible. at that point i don't believe anyone had raised proximate cause as a separate issue. the city has survived multiple motions to dismiss that went to the zone of interest. so that is what caused other cities to see the survival of that and the settlement of those cases, as a possibility to bring these cases. >> mr. peck, would you go back
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to the question that chief started, with which is how do you define the limits of your foreseeability test? clearly less tourism, less sales tax, less of a lot of other things can be potentially foreseeable, but you're suggesting they are not recoverable. is it because they're not foreseeable, or is it because they're not measurable? >> i think they are difficult to measure. they may be foreseeable, but also, the potential for superseding events that cut off the chain there. >> the phrase proximate cause in determining in how far damages extend. >> you know, i think it providing some help, but not a great deal of help. in lexmark, for example -- >> so where do i turn next?
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>> well, you know, in lexmark, the guidance this court gave was that damages incurred for the conduct the statute prohibits, we think that what we've done is proposed an approach -- >> it doesn't prohibit the decreasing property tax value. >> but it does prohibit discrimination in-housing. this is one of the damages we suffered that is directly the result of these kinds of home loans. so therefore, we have tried to cabin our damages with respect to the specific properties, and the damages they generate directly to the city. you know, all proximate cause requires is a sufficient connection between the alleged misconduct an the result, and it includes any injury the statute seeks protect against. so here we have injuries that the statute seeks to protect against. my friend doesn't disagree that those injuries are protected by
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the statute, and certainly, in gladstone and havens, those injuries are the injuries that this court recognized. so the question then becomes what is appropriate damages. we think we have proposed damages that are tightly connected to the actual injury that the city has suffered. >> i'm not saying we should or shouldn't, but we have doto go into that in. >> you don't need to decide that. one of the things the 11th circuit noted, when the briefs were written, when we argued the case, this court came down with the decision inclusive communities. in that decision, the court mentioned there is a proximate cause pleading standard that needs to be incorporated. and the 11th circuit said we're not going to delve into what exactly that is and remand it to the district court for that
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decision. and we think that that can play out in the further litigation of this lawsuit. >> include language along the lines, don't worry, it won't be much based on experience in baltimore and memphis? >> well, i just think that the fact that our opponents have indicated we're talking billions and billions of dollars, and this is about the 2008 financial crisis, which i also want to deny needed a response. and with respect to the financial crisis, if 2008 financial crisis was indeed the purpose of this lawsuit, then the statute of limitations, which is two years, would have ended this lawsuit a long time ago. instead, what we found and what the 11th circuit acknowledged, is that while the kinds of loans the financial crisis was set off by prime lending, the kinds of
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loans are taking different forms. the underlying practice remains the same. minority borrowers are getting more expensive, and riskier lobes that are quick loans, and it may be seven times as frequently as minority borrowers. >> the complaint was not clear between subprime and predatory loans? >> predatory loans is use add ace generic term to take advantage of a borrower. subprimes are interest rates so low, it looks like a wonderful deal, of course until you look at the balloon payments that are -- >> aren't all subprime lines properly categorized as predatory. >> i believe the subprime loans were all considered predatory.
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>> suppose you have a business that is losing money, losing employees, because the neighborhood is deteriorating. do they have a stronger or a weaker claim than you do? they've lost profits from their business, because the neighborhood has been dibiltate. >> they are commercial property owners. there is no damage to their personal property. but here what we're saying is if i could step back for a moment, the endangered species act recognized that article 3 standing applies to the endangered species act, but you still have to make a claim based on the interest of the preservation of animals. you can't do it based on discrimination. there is some generalized zone of interest that ties the
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statute to the cause of action. here, i say that the city has a special interest in fair housing. and integrated community that the fha is designed to vindicate. the employer does not. the local dry cleaner does not. they have this unique relationship to the fact that this is their community, their neighborhoods, their residents, which they zone, and they decide how the property is supposed to be used. and they provide services to everyone of these residents. and so therefore -- >> wouldn't be the business owner have an interest in running his business in an integrated vibrant neighborhood, just as the city would have, i would say, a less direct interest in having that neighborhood preserved in the city. >> you know, it may be so that a particular business does have that interest, but i think that it's very difficult to claim the kinds of damages that you've claimed. remember, one difference between the fha and title 7, for
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example, is that we recognize indirect harms. we allow neighbors, testers, nonprofit organizations, cities, develope developers, real estate developers to sue to vindicate that interest. we don't allow a coworker to bring an action that has been visited upon one of their colleagues. we don't allow others within that kind of realm to bring that's actions. a business that makes this claim might have, and it may be a problem. so in the end, what i'm suggesting is that there are direct injuries by virtue of these two, what my friend describes as buckets, a direct injury to the city in its efforts to secure fair housing by draining those resources, and those resources are recoverable, and that that indeed satisfies
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any kind of proximate cause, as well as an injury to that interest in an integrated community that allows the business opportunity, the social opportunities, professional opportunities to flow. that this court recognized in the gladstone case, and suggested that the appropriate and even my friend, in his brief, suggested the appropriate damages in such an instance is the loss of property values and property taxes, which frankly are part and parcel of this whole mortgage loan industry. so we're not asking for something that's different, that's out of the realm that's away from what this process is, but something that's integral to that process. in the end, what we suggest is the city of miami is not so marginally involved in fair housing. is not working in consistently and it is so far field from it, we are outside the zone of interest, whatever zone of
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interest applies. because after all, it is not a very demanding test. there a reason for that. that's because we are aggrieved in every sense of the word by the discrimination that was pro pounded here. at the same time, we think that that statement from lexmark that i quoted earlier, it has to essentially flow from the fact that there was some violation of the act is sufficient too. and each instance, we think our injury is direct, but even if it were to be examined as minutely as my friend suggest, those steps are all true of the individual borrower who has to take out a discriminatory loan, who has to default, arrive in for close you ar foreclosu foreclosure. he has to abandon that house. because all those different steps are, you know, the financial state of the economy.
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the nature of his job situation. his family situation. all have affects on that, but this is proximate cause from the injury that the fair housing act recognizes. so for those reasons, i suggest that this court ought to affirm the 11th circuit. >> thank you, counsel. >> mr. gannon. >> mr. chief justice, may it please the court. in gladstone, this court concluded a municipality was injured if discriminatory housing practices caused reduction in property values and therefore diminished his tax revenues. congress ratified that to the fair housing act, and the court should hold it is still cognizable today, whether article 3 rational or broad zone of interest rational.
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if i could turn to some of the points that have come up today. my friend on the other side says you can't cut and paste injury from one plaintiff to one victim of discrimination to another. that's an argument that gladstone specifically rejected. in footnote 9, the court said that what matters here, and this is what was the breadth of the trilology between 1972 and 1982, that somebody has had their legal rights violated by discriminatory housing practice. it doesn't necessarily have to be the plaintiff's legal rights. the plaintiff has to be injured by that violation, but it doesn't have to be their rights that are violated. that's the work being done by the atypical definition of a grieved person that congress put back into the statute -- >> well, that's a very broad statement, mr. gannon. what do you do then with the restaurant or dry cleaner, laundry, whatever, that wants to sue for somebody else's discrimination. >> well, agree with my friends
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on both side, but that limit will come from the proximate cause analysis. we don't disagree there is a proximate cause in the statute. the court said the city is directly injured by the decrease in property values. we think that the test, the ultimate test that this court stated in lexmark, of course, the court has repeatedly recognized that proximate cause is a statute by statute that depends on the nature of the individual statutes, but the ultimate test is whether there a sufficiently close connection to the conduct that the statute prohibits, what it prohibits is d discriminatory housing practice. >> how does proximate cause, you could have a dry cleaner or a magazine wants to write about it. clause could be absolutely
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clear. absolutely clear. 15 bishops testified, it was totally causally related. do they all have suits? >> what we're saying -- >> they haven't argued that. >> no, i think that to the extent they can get themselves into the home framework from havens, maybe they could say they have specific costs that are associated with fighting discrimination. he wanted to say that -- >> no, no, you heard the question. the question before. it still is we get into this, we may not need to. if we did, it would be somebody in alaska who writes magazine articles about success and integration will be wrecked, because they don't have integration in their example. bring the lawsuit? >> we think that that is further afield. we think that -- >> you think it is further afield? not because of causation, though, because it is cause. i made a hypothetical, where we prove it is cause. >> yes, it is cause, but
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proximate cause is always about determining that something that is caused is still too far away, either in terms of foreseeability or intervening cause or something else. so proximate cause by definition is carving out something that would be caused by, otherwise it wouldn't be doing anything different under article 3. here, we think that the reason why this is sufficiently closely connected to the conduct that the statute prohibits is that this statute prohibits discriminatory housing practice, like the terms of the condition of sale or rental of property, real estate transactions, block busting, which was specifically prohibited it was a practice in which somebody would go into a neighborhood and induce artificially low price panic selling, by saying minorities are coming into this neighborhood. >> how do we write it? let's take the corner grocer, or
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the gardener who every week cleaned the property, i doubt someone who is in foreclosure could afford a gardener, but let's assume that possibility. why -- how do we write that the city has standing and its injuries are proximately caused, but those people don't? >> i think -- >> company shareholder, what's the -- how do we say it in. >> the link that we see is to property values. that's the injury that the court recognized in gladstone. this is congressional intent. air trying to figure out what congress intended. this court already recognized that a city was directly injured by decreased property values. the same thing was true of the neighbors in gladstone. the neighbors had their property values diminished, were able to recover. the corner store, the extent,
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situated like its neighbors, lost profits, utility complaints, those things we think are further afield, and not so closely connected. it is traditionally done by -- >> could you give us more concrete answers? the utility company, you say it is further afield. is it covered or not? >> we think it is not covered. what this court recognized that congress was taking account of, and the effect on property values is closely tied to discrimination tore practices. as in lexmark -- >> how about real estate brokers whose commission is based on the value of the property? >> yes, real estate brokers involved in the transaction, those are the type of people that have an interest in the transaction, even if it is an economic interest, i don't understand my friends on the
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other side to dispute that. if they have a transaction that fails to go through because of this, because of racial discrimination, then they can sue. we think it is important for the court to remember that you don't have to -- >> this is a poor community, it will be lower across the board. >> i -- >> they're somehow lower than the corner grocery store. >> no, if they were just if business is done. the types of cases that we've previously seen are where real estate agents have talked about specific transactions that they can say were caused by discriminatory housing practices. we do think it is important for the court to recall that those cases involved plaintiffs who don't necessarily have a quote-unquote desegregation interest, as my friend on the other side puts it. it is enough that they are injured in their economic interest, and as the court pointed out in inclusive
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communities real estate agent, we don't require that they add-on, something like the nonprofit in havens, where in addition to wanting to make money off of developing the property, they have an interest in desegregation. similarly -- >> perhaps -- please. >> your answer to the question i think is that it is limited to those cognizable suits contemplated by the statute, and you see "contemplated by the statute" as the value of the property. >> we think the harms that flow directly from property value were ones that congress contemplated both in 1968 and 1988 when this court already had enumerated as a particular type of harm at issue here weechlt don't think the city should have to establish there has been a change in racial composition of the neighborhood in order to bring a institute.
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the fair housing act is intended to cover -- is intended to prohibit discriminatory practices throughout the united states and that includes segregated communities that aren't changing. >> the city can sue based on isolated instances of discrimination. >> to the extent -- the. >> the basic pitch of your position is it affect the community as a whole, and the city has an interest in ensuring the stability of the communities. not that the city could enforce particular instances of housing discrimination. >> i think it is both. i think that they do have the community representing interest, and but i also think that to the extent they can say we suffer harm from this transaction, let's assume it is one particular apartment complex. >> no, one particular home. >> yeah i suspect that's one where they wouldn't that much in it to have the city bring that
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suit instead of the loan owner. >> i don't know if it is that much in it. can the city bring that or not? >> yes, in relation -- lexmark, whenever there is a de -- corresponding decline. >> what we are taking about here, one subprime mortgage that results in aforeclosure. >> if they can say it was caused by discriminatory practices and it injured them, yes. it is just like trafacate or gladstone, we are injured by this. >> thank you, counsel. >> with respect to this complaint, paragraph 186 and so on, we agree page 33 they do identify an interest, but they
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have to plausible. second, the damages here they seek are way broader than what they're painted out to be, the taxes and complaint are bad enough, indeed, the bank of america sites one of the complaints filed by the same counsel against cobb county seeking hundreds of millions of dollars. there are 19,300 cities in america, if you adopt their theory, you would allowing all of them to bring complaints just like this. we have said that if you accept their interpretation, you would be opening the door. solli solicitor general says huh-huh. eliminating the directness requirement, it will be hard and he doesn't have an answer on the magazine and things like that. justice sotomayor, how to write the opinion to avoid gardener,
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his answer was look at gladstone, because there is a direct reduction. it cannot be a consistent theory on proximate cause principles, one of which, it is not a proximate cause. secretary, even the language he is reading, is only at the end of gladstone, if you have a reduction in property values, then it would directly reduce the tax base. you've got five steps as the solicitor general in its own briefs, before you get reduction in values, and all the kinds of things this court in lexmark says are the reason we cut off liability at the feirst step. the congressional report identifies that congregation was concerned with property value, and therefore, concerned with cities. that congressional report says congress is concerned with employers who suffered from segregated neighborhood, employees who were fired because
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the neighborhoods suffered from blight, and shops an other things. if you take their standard, which is look at the congressional report, figure out who is harmed by housing discrimination, even downstream, would you come to the same conclusion we do, which is this an unlimited theory of liability, allowing landlords to sue, and justice sotomayor, gardeners to sue. just it is a kagan, this gets to your point earlier. if you adopt on zone of interest, 3612, allows aggrieved persons to intervene in federal litigation. our view is what congress did was direct victims to sue. any city, including not motivated by the same motivations as the city of miami can come in and intervene in a
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direct victim's lawsuit and muck it up in any number of directions. that can't possibly be what congress thought about when they used the person "person aggrieved" in the statute. to come in and interfere with kind of lawsuits filed by direct victims. >> it is hard to think that congress didn't know that in 1988, when we've already let a village come in. >> our position on this, this is very important, we're not quibbling with that. gladstone is absolutely 100% good law. we're not seeking to change it. they are the ones seeking to expand it in two directions, both by taking it out of segregation and expanding proximate cause to the sky. >> thank you, counsel. the case is submitted. we have a special web page at c-span.org to help you follow the supreme court. go to c-span.org, and select supreme court near the top of the page. once there, you'll see four of
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the most recent oral arguments heard by the court this term. quick on the "view all" link, to see all the oral arguments. you can see recent appearances by many of the supreme court just tesss or watch justices in their own word, including one-on-one interviews in the past few months with justices kagan, ginsburg. there is a calendar for this term, a list of all justices with links to see their appearances on c-span, as well as many other supreme court videos available on demand. follow the supreme court, at c-span.org. the supreme court also heard oral argument in lynch v. morales santana, a case testing the constitutionality of an immigration law for unmarried mothers to pass u.s. citizenship born in other countries than it does unmarried american fathers. a lower courtsided with the
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child's father, who challenged his deportation, arguing the gender discrimination for men and women for birth right citizenship was unconstitutional. >> may it please the court. the united states constitution does not confer u.s. citizenship on anyone born outside the united states. rather, nunder authority, it is for congress to determine which should be granted u.s. citizenship by statute. in doing so, congress has always required that the persons involved have a demonstrated and sufficient connection to the united states, either in themselves or through their parents to warrant the confer ralph citizenship, because citizenship carries with it attendant duties and rights on
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the part of the individual and important duties of protection and obligation on the part of the united states government. this case concerned the framework under the immigration and national act of 1952, as originally enacted for granting citizenship to persons outside the united states, as of the date of their birth. other provisions deal with the granting of citizenship later in life, those who are open to respondent or his father in this case, but were not taken advantage of. particularly of this case concerns that granting of citizenship to children born out of wedlock abroad. a situation in which this court's cases made clear that mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth. the general rule fors for citizenship are set out, and i'm
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referring to the act as originally enacted. it was revised in 1986. if both parents were u.s. citizens, then a child born outside the united states would be a citizen of the united states as long as one of the parents had resided in the united states for any period of time. congress deemed that to be a sufficient connection to the united states given that both parents were citizens. on the other hand, if one parent was a u.s. citizen and one parent was an alien, congress had a different approach. the u.s. citizen parent had to have resided in the united states for ten years, five of which were after reaching the age of 14. congress evidently determined that because such a child would have competing claims of allegiance, that a greater residency was required for the parent to establish the connection to the united states. >> is that an argument we heard much about in the florez vr
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case? >> it was made at the oral argument in florez vr. but we think it is also evident from the face of this statute as this court said with respect to another argument that the court addressed there, it is important for the court itself to look at the structure, text and operation of the statute. >> i thought vilar, the government spent most of the argument talking about the differential treatment of pliem primarily on the grounds of statelessness. >> right. >> you're arguing that someone needs to ensure sufficient ties. >> we're making both arguments. we did argue in florez vilar that there should be a connection, and that the statutory framework is set up that way. it is true, it was on statelessness, but we're arguing and we think it is entirely
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evident from the face of the statute what these provisions are after is connection to the united states. >> why aren't men and women who are parents similarly situated with respect to their affiliation, their attachment to u.s. values? i mean, there is no reason to think a man is less -- has less of a sense of u.s. belonging than a woman. >> right. and we're making so enough argument. the point is that where you have at the moment of birth, the mother, as this court recognized in noen case, and recognized like blair versus robinson, the mother is the only legally recognized parent. >> there are many cases, especially in generations back,
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when this law was on the books, where the mother, the birth certificate came sometime after the child was born. and both the father's name and the mother's name might be on it. so it is not -- the moment of birth doesn't necessarily tell you who is the mother, if she -- if there is no birth certificate and the child, when they get the birth certificate, both names are on it. >> but i think this court's decision in nuen and the stat at that time -- state statutes that the identity of the mother and her relationship to the child will be known by virtue of the birth alone or at least will be known in the overwhelming majority of cases. in that situation, there is only one parent. not a competing claim of
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citizenship to -- completing claim of allegiance to another country through another parent. on the other hand, when the father legitimates, at that point, you have two parents, and the situation where they are of different nationalities then you are put in the situation where there are competing claims -- >> why do we look at the moment of birth? why shouldn't we look when citizenship is sought? >> because this statutory provision specifically deals with citizenship at birth. and the statute, that's its caption 1409 a, with respect to the situation where the father legitimates, says the child shall be a citizen as of birth. it is important to understand exactly what is operating here. at the moment of birth, again, the child only has one parent. when the father legitimates,
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what congress has done generously, we will treat the couple as if they were married at the moment of birth. they're giving retroactive application to the legitimacy, so the child is treated as the tre treated as a child of married parents. if the legitimating father is a u.s. citizen, in fa thank situation, you have two u.s. parents and the very generous rule for u.s. citizen parents would apply in that situation. >> -- more a matter of proof, whereas this case, as justice ginsburg indicates, is a question of which does the child have sufficient ties to the country. it is quite a different proposition, the two -- it seems to me. >> two things about that. this court's decision in nuen
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identified two separate interests. one was the proof of pa teterni but the other was the connection to the united states. the connection to the united states in a situation like this has two steps. what's the relationship of the child to the parent. and nuen was concerned about establishing that relationship that in some formal sense, and also, underlying it, a real sense of establishing that relationship. this case deals with a relationship of the parent to the united states. >> the problem is with the exception that's been created for unwed citizen mothers, the first prong, the interest of the connection to the united states doesn't exist. because the statute doesn't require any connection to the united states except u.s. citizenship. she could have been born, lived here a day, and moved somewhere else, and she would automatically confer. >> no, not under the 1952 act, under the 19 -- that was true under the 1940 act. under the 1952 act --
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>> it is -- >> it is continuous presence for one year. congress deemed that to be basically somewhere in between the two u.s. citizen parent situations in which any period of residency was okay, and the mixed nationality situation, where congress said it had to be ten and five. congress chose a period somewhere in between. >> why should it be different for an unwed father, who has legitimate ties to the child? >> because in that situation, there are two parents. the argument is not that the fath father's ties are less, congress wanted to make sure the strength of the u.s. citizens ties were sufficient that they would outweigh or counteract where congress could be sufficiently confident of a tie to the united states to grant citizenship in that situation. and again, we know --
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>> couldn't that have been done, plchlt kneedler, for example, noy that there was a proposal that the secretary of state made earlier than this statute was passed in the 1930s, which talked just about legal parents, which didn't refer to mothers and fathers at all. >> right, i mean several things about that. i don't think there is a claim in this case that respondent would benefit from reading the statute in that manner, because i -- i don't think there is any question that he had citizenship and a legal parent when he was born. >> well, but that -- >> beyond that -- >> get rid of the gender inequality that is at the heart of his complaint, whether or not he in the end benefits from it, the question here is whether the statute makes constitutes a violation of equal protection, one question we ask when we think about a question like that is could congress have written the statute, could congress have served its objectives in an
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entirely gender neutral way. it seems here, we have the secretary of state presented a statute to congress that actually did that. >> yes, but as was pointed out at the time, and as we point out in our brief, while that statute on its face looked gender neutral, in fact, it would have operated in exactly the same way, because no one has really taken serious issue with the proposition we have in our brief, that at the moment of birth, it was the overwhelming rule that the mother was the only legally recognized parent. so in that -- theit would have operated in the essentially the same way. let me come at this in a slightly different direction. when you have one parent, the mother in this case, she gets to make all of the pertinent decisions about the child, where they will live, where they will be domiciled, situations like
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that. when a father legitimates, he does not then acquire the right to make the sole right to make all the decisions for the child. there are then two parents. he gets to be -- >> a lot of complicated things, but the question, i think, is think of the child. the child is born out of wedlock. now, if his mother was an american, he become as an amerin if she lives here for one year. if it is his father, she becomes an american only if he has lived here for eight or ten years. that's the difference. and why does that make a difference? >> but that -- >> -- justifies the gender discrimination. >> that's the same rule applies if the parents are married. >> two wrongs don't make a right. >> but, well, i don't think it -- no one is challenging -- >> perhaps.
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i accept that no one is challenging. i'm not asking that question. i'm asking the question of what it is i would repeat the question, you heard, i think is the equal protection question at the heart of the case. >> well -- >> the answer you've given in your brief was some endlessly, very well written and brilliant, but it went into this thing about stateless persons, and then we have like 17 briefs that say no, no, that wasn't what the situation was. stateless persons. so i guess the question would be, was it enough of a stateless person justification to warrant this gender discrimination. there is no point in repeating it. i think i've taken in that argument. i have to make up my mind about it. is there anything else? >> the first argument we're making again is the point of connection to the united states, and that's where the married couple comes in. because no one is challenging a
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proposition. congress can impose a residency requirement. >> i did have justice kagan's question in mind when i read it. why don't they ask the child if it would like when it reaches the age of 21 to be connected to the united states, and see if the child votes in american elections and lives here for a while. why are they so worried about the child's parents. you don't have to answer that. >> it provides for citizenship after birth. >> lived here for 14 years, and so forth. all kinds of stuff. >> no. >> i don't want to argue with you on this point. i want to know if i have the reason for saying the mother, if she is a u.s. citizen and born out of wedlock, you only live here for a year, but the father, has to live here for like ten years or eight years or something like that? real justification for that, you've been able to find, the only one you've been able to
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find has do with this thing about stateless -- >> no, we have two reasons. the first one is the connection to the united states, which is evident on the face of the statute. when the father legitimates, what the statute does is treat the couple as if they were married, and in fact, in this case, the child was legitimated by marriage, and what the statute basically did was make the marriage retroactive. >> i'm going to make an example where they're never married. >> well, if they -- >> they like living together without being married. what's the justification? >> under the 1986 amendments, it is easier for the father to acknowledge the child, but in that situation, again, there are two parents. in that situation, the father does not get to make unilateral decisions about the child. if -- he gets to be a parent too. this is true in lair versus
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robinson and the cases this court has had. >> mr. kneedler, you have giving a sophisticated rational, but we're talking about legislation from 1940 and 1952. at that time, the statute books were just shot through with distinctions between children born out of wedlock and affiliation with the mother and the father. so this was a piece with all that legislation, and it wasn't until when was trimbal against gordon, illinois probate code, a child born out of wedlock can inherit intestate from the mother only, not the father. the laws just put mothers and
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children, not one of a marriage and separated fathers from their children, and nobody thought until the 1970s, that that was a violation of equal protection. in a whole series of cases in the 70', the court recognized that indeed, there was a violation of equal protection. >> insofar as, i mean there are two equal protection arguments in cases like that. one of them has do with equal protection on the basis of illegitimate see. that's not raised here, and with good reason. respondent, as an alien outside the united states, so it is the parents right -- >> the laws existed, put mothers and children born out of wedlock together and separated fathers from their children. >> right. >> no matter what the reality of their life was. >> and in this court's decision in fiallo, immigration context,
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that's exactly the situation and the court rejected equal protection claims based on both sex discrimination and on illegitima illegitimate. >> that was not citizenship. >> it wasn't, but we think it follows into the citizenship of our society on a permanent basis with rights to come and go with all the rights and obligations. but i also wanted to address your question with respect to the domestic context. this court's decision in lair versus robinson sustained a situation where a child was going to be put up for adoption. the mother would ordinarily have the sole right to decide that. but the situation was what about the father. well, the father had to take some affirmative steps to put himself in a situation where he could have a role, essentially a veto power. >> as his father did.
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his father -- didn't the couple mare? >> yes, they did. but at that point he is not similarly situated to the mother. either at the time of birth or at the time he legitimates. >> can i ask you this question. if the court thinks that the statute violates the equal protection law, does it follow that the petitioner is entitled to relieve that was awarded to him by the second circuit? in other words, the granting of citizenship? >> no, it by no means follows. >> we had a similar issue a few terms go, the florez vilar case, it was a criminal conviction. here, criminal convictions are not an issue. it has nothing do with alien. is that correct? >> right. >> the underlying criminal -- >> right, no, they were regular state law convictions. >> i take it the thrust of
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justice alito's question, what is the remedy, if we level up, it is easier for both, if we level down, then the -- it is harder for both. >> we think that the court the general rule, 1409 c is an exception to a general rule that governs the vast majority. the three categories of cases. married mothers, marry ried fathers and unmarried fathers. there's no reason that congress would have wanted unmarried fathers. >> one i could think of and i'd like your opinion about it is how many do you think unmarried fathers there were in 1952 who couldn't qualify under the long
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period of time, 8 years, and that's not so hard to do if you're in the army. but they would have qualified under the one year. now i use the numbers in your brief which were brilliant of you to rye to find. i don't know how you found those but that 4,000 number kept coming back and i thought maybe there were a couple of thousand a year but do we know that there's more than a couple of thousand. >> i thought you said they're untold numbers. >> no, they're untold numbers but that is true. they're untold numbers and then that's not told. so i'm trying to find how close we could come. >> it's very hard -- it's very hard to estimate but this court's decision identified number of people that travelled
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abroad and the numbers are higher even now. >> let's go back to '52. no let's go back to '52 and the couple is unmarried and it's a father who, in fact, would qualify if he only had to live here for a year but he wouldn't qualify if he had to live here for 8 years before the baby is born. never marries the mother. okay. so i'm thinking who could those people have been? they would have been people maybe working for american businesses or something and there weren't that many at that time. so i use your 4,000. that perhaps is not right. >> we have wondered the same thing and the only thing we were able to identify and this was really not very closely on point but the state department told us that today they grabbed 8,000 certificates of birth abroad. the number of fathers could be far larger. were you finished? yes. >> we level up rather than level down. that's been the court's practice. wouldn't you agree. >> the court made clear that
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that's not constitutionally compelled. there are compelling reasons here not to do that. >> well, i find one compelling reason to do it and i just thought i'd offer this up to you and see what you have to say is that in this case unlike in some cases there really isn't a choice between leveling up and leveling down in one sense because if you level down this gets no relief. this party gets absolutely no relief. so isn't that a problem? isn't it the same problem as justice harlin recognized when he was dealing with a criminal matter? he said you can't level down because you can't give everybody the exact same benefit. >> several things in this
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context in particular there's serious questions about whether the court can but at the very least substantial reasons why the court should not grant citizenship to someone, effectively grant citizenship to someone to whom congress itself has not granted it. >> it's citizenship and. >> it would have that effect. we think the only proper remedy is to apply the ten year rule to everyone and let congress step in and address the problem. >> if the petitioners parents had been married would he be entitled to relief? >> no. >> there's other situations in which the court finds a constitutional violation but does not grant relief. the court might ajude kate a violation. >> if we were to level up we would -- >> that petitioner would be given preference over someone that is similarly situated except for the fact that that person's parents were married if such a person were to bring a suit they would have a strong equal protection claim would they not? >> i hesitate to say. >> but that illustrates the the problems of the remedy. >> the claim is gender discrimination and married parents, mother and father have been treated equally badly but when they're unwed the mother is given the preference and the father is not so we are talking
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about equal protection. not qualified immunity. you have two people suddenly situated and they have to be treated he equally. the unwed father is equal to the unwed mother. >> my only point was there are situations which the court has found constitutional violation and not granted relief. >> not in a situation where we say there's an equal protection violation and if we extend the benefit to everybody we can take care of that and remedy the problem but if we do not if we try to level down the effect of that is that the party before us who has proved an equal protection violation get nos relief at all. >> i'd like to answer that quickly and reserve the balance of my time for rebutal.
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it's also relevant in taking into account the remedy that this is not the only constitutional right. it's a third party claim. there's no automatic right to raise the right of third parties.
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in this case the father. so that could properly be taken into account. >> thank you council. >> mr. chief justice may it please the court. respondent's father was a citizen of the united states. had he been the mother instead of the father there would be no question that he transmitted citizenship to respondent. the statute bars him from doing so on the same terms as a mother is not based on my biological difference between men and women or mothers and fathers. nor does it ensure an interest in reducing statelessness or
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ensuring that citizenship by descent pass only to those children who are likely to learn american values. both of the governments justifications for the gender differential fail i'd like to begin by addressing the standard of review. there is no dispute here that respondent has third party standing to assert the equal protection claim of his father.
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that claim plainly is subject to scrutiny. and this court applied rational basis view. and it is true if the plaintiffs included a us citizen father and they days agreed with the descenting justice that his equal protection rights were at stake. there was never a question that they were not u.s. citizens. the dispute is one of the dispute centers of the respondents father on the same terms that a mother could transmit citizenship. >> always say at some point the problem that worries me the most is assuming this is
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unconstitutional. you put the 14 yearsor whatever it is, the ten years on both or the one year on both. he does have a point and when the parents are married and when they're not married it's the one year and that really doesn't make much sense so i period hope you'll get to that and in the course of that i read in a brief that bothered me a lot and it says actually the one year requirement is tougher and the reason is because the state department administers it. how they do this i don't know. i want to know if that's really true but they administer it to say if you're hiving in the
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united states you have to live here for one year and if you set one foot across the border to get a drink of water you don't qualify and more over you have to prove that you never did set one foot to get a drink of water. well nobody could prove such a thing. so i'm interested in that word continuous and how it is. those are two things we should remedy. >> the word continuous i do not think as a practical matter can be applied in a way that somebody would come forward and prove they were in the united states for 635 days. they don't have to show proof that they were in the united
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states on each of those days. >> i'm asking you those questions. that is your answer and maybe if the solicitor general has time he could confirm that answer by saying yes. >> so when we were at the court of appeals the court remanded the case to the western district of new york for a determination on that very question. whether or not in order to decide whether the court should address the constitutional issue the court asked whether respondents father would have satisfied so we went to the western district of new york and the government ultimately stipulated that yes because we have evidence of respondents father plead guilty in the united states or outlying position from his birth in 1900 until the date of his departure from the dominican republic in 1919 we will presume that there's at least some period in there where he is in the united states for one continuous year and that presumption would apply in most cases.
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and perhaps that would be harder for some people to follow but an alternative remedy could be to leave both options on the table. >> if we made it harder would that effect the status of people who obtained citizenship under the more lenient provision as applicable to the mother. >> justice kennedy if had court applied the leveling down of remedy in a way that would equalize the two similarly situated classes here it would have to -- yes it would impact people dramatically because it would take citizenship away. >> it's not necessary. >> once you have citizenship it's the -- we have cases that can't be taken away. >> right and you can't -- i would submit -- >> the perspective by reason of that document. >> you could not apply a perspective remedy in this case because it would not effect anybody whose citizenship was governed by the 1952 app. it would not affect respondent's father. anybody born between 1952 and 1986 the two -- >> the problem isn't that the very inequality that you are complaining of would remain because it's impossible to claw back everybody else's citizenship so it's really impossible to level down and the very inequality that we just found would remain. >> that's right. that the governments proposal is no remedy. it would not -- it would leave in place all the gender discriminatory effects caused by this statute. >> it's not just that it doesn't give you citizenship. it doesn't cure the inequality at all. whether by leveling down or by leveling up. >> that's right. and the government's position
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would have to be the same if this was a case of race discrimination. the government would have to say that yes if the citizenship statute discriminated on the basis of race this court would be powerless to correct the residual effects of that racial discriminatory statute. or any equal protection violation. >> in most of the cases where a benefit was extended. the group to which the benefit was extended was a smaller group than the group that already had the benefit and here parents, then most people are under the more difficult rule ten years or whatever it is. and it's the smaller group that
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gets the benefit. >> right. >> you would be extending a benefit enjoyed by a smaller group to a larger group. >> well we're not asking for the remedy that proposed justice. >> when i preferred to parent it. >> it does appear that there is an anomaly there. if she marries the father the day after the child was born, one year. >> that's true. isn't it something else when we devise a remedy that deepens as extends and have we ever done that. >> i don't think the court would be extending the court protection violation. >> it could be a legitimacy discrimination the laws that are -- what are they subject too.
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and discrimination against the children of unwed parents. what is the standard of review now. >> it's also scrutiny. >> have we ever said there would be a different level of scrutiny if the discrimination was against children that were born to mary parents?
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would you make that argument? >> no, i wouldn't make that argument but i think that that claim, that legitimacy claim could be brought by people today. people that are born to unmarried united states citizen mothers. >> yeah. >> children that are born to unmarried mothers but not to children that are born to unmarried fathers and you would extend the problem. you would have this court extend the problem. >> the same thing could be brought up today. the only difference is whether or not it could be brought by the child of a mother or a
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father but if you go to the heart of the equal protection violation here the fact that there may also be a legitimacy discrimination going on does not eradicate the equal protection violation. the two similarly situated classes here are unmarried united states citizen fathers and unmarried united states citizen mothers and it could be that congress had good reasons for treating nonmarital children more leniently at least in the case of mothers than marital children because historically non-marital children were a much more vulnerable class. they were the illegitimate and they didn't have the same kind of rights and until 1940, in fact, they didn't have a statutory right to citizenship. so there could be logical reasons. >> and you think that was congress's intent in 1952. >> i think in 1940 -- >> in 1940 you think that was
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congress' intent? >> i think in 1940 when congress passed the statute it was concerned about non-marital children being separated at the borders from their guardian parents. the problem is that congress assumed to administrative officials that draft this statute assumed that the guardian parent was always going to be the mother. >> you can conceive the possibility of the members of congress in 1940 or 1952 taking the floor and arguing we need to discriminate against the children of married parents and in favor of the children of unmarried parents? >> no. i don't think that's what was going on at all. >> one thing, they were giving the benefit to the unmarried mother because they thought she was different from the unmarried father. >> there is an assumption that the mother at that time, it was a reflexive assumption. i don't think it's true today. but that the mother was going to be the guardian parent and wanted to make sure that the requirements were not going to have the impact of separating that nonmarital child from who they presumed to be. >> suppose there were some statistics that would indicate that over 100,000 new citizens
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or persons would qualify for citizenship would that effect our decision. >> ultimately they could decide whether or not there was an equal protection violation. >> we have to consider what the congress. >> given congress's purpose here, in fact, if you take either the purpose that we have argued was the purpose of 1409 and the purpose both are served by extending the benefits to unmarried fathers. >> how would that effect children that are born to a citizen father? who were previously denied citizenship? that they come in and claim citizenship now? >> only if they satisfied all
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the other statutory requirements. >> which means? >> yes if they satisfied the others. >> the continuous one year. >> and the legitimate requirement. >> first the father would have had to have sired this child abroad. would have had to recognize the child, would have had to support the child. >> that's correct. >> we're talking about a fairly limited class. and i would like to turn to the governments. >> before you do that just on the remedy question very occasionally this court has faced a situation when the remedy of something that it is holding and then we're concerned a little bit about how whether
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congress would prefer a different remedy so for example in the northern pipeline case. so congress could decide whether it preferred some other way of dealing with the problem. whether that would be appropriate. >> first and foremost the equal protection violation suffered by the parties. if the court were to level up and make respondent a citizen and then jult there after. >> it cannot be thinking about -- well, not tying to remedy an equal protection violation only in the future and i think that is the fundamental problem with the governments really is that it could only apply to unborn children and future parents and it would have no impact on anybody affected by the statute at issue before the court today.
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>> it should have been after our case. >> yeah but what we have seen justice kennedy is that since the date that this discriminatory provision was first enacted in 1940, it has consistently, congress has consistently reduced the burden on fathers. and congress has shown it is continually reducing the physical presence requirements and the component to it so it concludes it. >> they also have them confronted. the last time congress considered the statute was in 1986 and the equal protection challenge was not -- was not made until the case and that -- >> why did you use the word today? >> is it then or is it now? it's easier for you if it is now. >> i think it is now. >> you're not going to help me if you just say that. is that in your interest to say? is there anything that you would point to that would say it's now and not then. >> if the question is how would congress remedy the staff ute it can only be remedied by the congress today.
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they have considered the issue and at no point took the step of eliminating it. >> they haven't been confronted. the last time congress considered the statute was in 1986 and the equal protection challenge was not -- was not made until the villar case. >> why did you use the word today? i thought we were supposed to go back and figure out if they had known that it was unconstitutional to give the unmarried woman a year requirement to live in the united states and to give the unmarried man where he's a citizen eight years' requirement. suppose they had known that was
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un constitution unconstitutional then what would they have done then? is it then or is it now? it's easier for you if it is now. >> i think it is now. >> you're not going to help me if you just say that. is that in your interest to say? is there anything that you would point to that would say it's now and not then. >> if the question is how would congress remedy the staff ute it can only be remedied by the congress today. >> the question is what did they intend. how would they remedy that question? >> what would their understanding have been about the appropriate remedy when they
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passed the statute? >> the appropriate answer to that is they were concerned that the physical presence requirements would create a significant burden on marital children. they presumed the mother would be the guardian. they presumed the child should stay with the mother. they didn't want the physical requirement to create a further burden on that relationship. >> to ask what they would do is strange in this context. because the court was sitting then, gender based lines were granted. >> that's right. >> if i could just finish the chief justice's question, it is not clear at all that the 1940 congress would have chosen to just sever the 1409-c entirely.
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it would be as destructive of congress's intent to with draw a benefit congress plainly intended to confer than it would be to extend the benefit that perhaps congress did not. >> do i understand you to agree when we approach these question s that we look to what the congress at the time would have done. >> i'm not sure there is a clear answer to that, mr. chief justice. the court could look at what congress would do today and what congress has done in the decades since. >> do you find any case which supports that? >> no. >> anything against it? >> no case for or against it. >> you will find lots of cases when we address the question that talks about the intent of the congress that passed the statute, i think. >> certainly there are plenty of cases on that. >> i don't think there are any. you haven't found one. i don't think anybody could find one. when looking at a question of congressional intent and a
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question of this we look at what a congress 60 years later would have thought. >> if we were looking -- >> is that true of, say, wescot when the category was unemployed father and it was changed to include unemployed mothers? the social security cases when what congress did was just with everything where the man was dominant in the family and the woman was the subordinate person. so to say we want to go back to a congress with that mind set and that's what they would have done is hard. >> it is difficult. >> then don't pretend you are

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